The charity Roadpeace have produced an excellent briefing.
RoadPeace believes the adoption of a stricter liability system is essential not only for fairness and justice but also for the increase in active travel critical for public health and environmental needs.
1. What is it?
Under our current system, vulnerable road users (pedestrians and cyclists) injured by a driver (or their families if they are killed) only qualify for compensation when it can be proved that the driver was at fault.
Under a stricter liability compensation system, the burden of proof is reversed. Injured pedestrians and cyclists are presumed to qualify for civil compensation.
2. Why do we need it?
While we all share the road, we do not share the risk. In 2010, there were nearly 29,000 collisions between cars and cyclists and pedestrians, resulting in 5,130 killed or seriously injured casualties. Of these, 51 (1%) were drivers or car passengers, with only one fatality.
Even when pedestrians and cyclists survive, they can be left with life-changing injuries, and loss of their mobility or their capacity to work, sometimes permanently. The frequency of shock, concussion and head injury also means that they often lose any recollection of the collision. This makes them heavily reliant on the identification of witnesses who are willing to testify, if driver error is to be proven for a civil claim.
The adoption of stricter liability would reduce the unfairness of outcomes and should encourage the insurance industry to invest in reducing the threat posed to vulnerable road users as they already have with occupant safety and vehicle security.
Stricter liability would also help create a safer road environment, promoting active travel. In a recent report for the National Institute for Clinical Excellence, on Making walking and cycling normal, changing the civil legal liability system was identified as a key measure (Pooley, 2012).
3. What it is not?
• It is not a blank cheque for cyclists and pedestrians.
Adult pedestrians and cyclists who are shown to have caused or contributed to collisions could have their claim rejected or reduced. Pedestrians darting out from behind parked cars or cyclists running red lights would not have to be compensated.
• It is not a threat to fundamental British liberties
Innocent until proven guilty is a principle shared by all common law and many civil law systems but it applies to criminal prosecution, not civil compensation. Stricter liability only applies to civil law.
4. Which countries have it?
Most countries in the world have a civil liability system whereby pedestrians and cyclists are assumed to qualify for compensation. In Europe this includes Belgium, Denmark, France, Germany, Netherlands, and Spain. In Sweden all casualties qualify for compensation. Stricter liability is the norm outside of Europe and can be found in Asia, including India, Bangladesh, Viet Nam. It was introduced in China less than 10 years ago.
Besides Britain, the other European countries that operate under a fault based system include Ireland, Malta, and Portugal.
5. How does it vary between countries?
In some countries including France and the Netherlands, children, older people and those with impairments will always qualify for compensation, no matter what their actions. Mistakes by them would not affect their right to compensation. RoadPeace supports this principle.
6. Who benefits?
All those who would previously been denied compensation due to lack of proof of driver fault.
Children and older people stand to gain the most. The European Child Safety Alliance scores countries performances and having a compensation system which puts the responsibility on drivers is a key indicator of a good system.
7. Who pays for it?
In collisions where the driver was prosecuted for causing the crash, the driver’s insurance company would be responsible for compensation.
In those cases where the evidence is lacking and it is unclear who is responsible, then the cost would be shared amongst motor insurance policy holders – a system already used for damage caused by uninsured or hit and run drivers.
8. Who else wants this?
Cycling organisations such as CTC and LCC have long appreciated the importance of stricter liability. Living Streets also supports it. The Green Party endorsed stricter liability at their Spring 2012 party conference. Any organisation campaigning on behalf of children and older people, active travel, or the environment should also support it.
9. Is it going to happen soon?
There was an Early Day Motion on stricter liability (EDM 1393) in 2011. Mike Penning, Road Safety Minister, has stated that the government is “not convinced that the introduction of such a system for road traffic incidents would be for the benefit of road safety and it could be unfair to responsible road users”. And so we are left with a system that is unfair to vulnerable road users and undermines active travel promotion.
For further information, see http://www.roadpeace.org